The requirement of framing issues under Rule 28 of the Workmen's Compensation Rules, 1924, is not mandatory and non-compliance with the same would not vitiate the proceeding unless prejudice has been caused to the concerned party.

JUDGMENT :

Hansaria, C.J. - The question referred to this Bench is whether Rule 28 of the Workmen's Compensation Rules, 1924 (shortly called 'the Rules') is mandatory. The question has been referred because of different views taken by this Court in different decisions.

2. Rule 28 is one of the rules framed by the Government to carry out the purposes of the Workmen's ompensation Act, 1923 and deals with framing of issues. It reads as below:

"28. Framing of issues - (1) After considering any written statement and the result of any examination of the parties, the Commissioner shall ascertain upon what material propositions of fact or of law the parties are at variance and shall thereupon proceed to frame and record the issues upon which the right decision of the case appears to him to depend.

(2) In recording the issues, the Commissioner shall distinguish between those issues which in his opinion concern points of facts and those which concern points of law."

Relying on the use of the word 'shall' in the rule, it is contended by Shri Roy that the provision relating to framing of issues is mandatory and any violation of the same would render the entire order of the Commissioner for Workmen's Compensation invalid. As against this, the contention of Shri Mohapatra is that the provision of framing issues is only directory and non-compliance of the same would not vitiate the proceeding unless some prejudice has been caused to the concerned party.

3. As Shri Roy has built up his argument, inter alia, on the strength of the use of the word 'shall' in Rule 28, it may be pointed out that though the word 'shall' is ordinarily mandatory, but it is sometimes not so interpreted if the context or the intention otherwise demands as observed in paragraph 12 of Sainik Motors, Jodhpur and Others Vs. The State of Rajasthan. What is stated in this regard in paragraph 29 of The State of Uttar Pradesh and Others Vs. Babu Ram Upadhya is that when a statute uses the word 'shall', prima facie it is mandatory, but the court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. We may also refer in this connection to Govindlal Chhaganlal Patel Vs. The Agricultural Produce Market Committee, Godhra and Others in paragraph 11 of which reference has been made to Maxwell, Crawford and Craies in which illustrations abound where the words "shall" and "may" are treated as interchangeable. "Shall be liable to pay interest" does not mean "must be made liable to pay interest", and "may not drive on the wrong side of the road" must mean "shall not drive on the wrong side of the road". The question posed, therefore, was : Does the legislature intend that its command shall at all events be performed? Or, it is enough to comply with the command in substance? In other words, the question is: Is the provision mandatory or directory? Reference was also made in paragraph 13 to the following observation of law in Crawford on "Statutory Construction", Edn. 1940, Article 261, page 516 wherein it was stated:-

"The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design and the consequences which would follow from construing it the one way or the other."

4. We may also refer with profit the observation made in Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others wherein at page 245 it was stated:-

"It is well established that an enactment in form mandatory might in substance be directory and that the use of the word 'shall' does not conclude the matter."

This observation was quoted with approval, in State of U.P. v. Baburam, (supra).

5. It has been stated in an oft-quoted passage by Lord Campbell as below:-

"No universal rule can be laid down as to whet